Tweets, Leaks, Classified Information, and the Right to Know

By William Boardman, Reader Supported News

09 August 17

“After many years of LEAKS going on in Washington, it is great to see the A.G. [Attorney General] taking action! For National Security, the tougher the better!”

– Tweet by President Trump, August 5, 2017

“U.S. spy satellites detect North Korea moving anti-ship cruise missiles to patrol boat.”

– Tweet by Fox & friends, August 8, 2017;
Re-tweeted by President Trump 6:50 a.m. same day

“I can’t talk about anything that’s classified and if that’s in the newspaper that’s a shame,... it’s one of those things I don’t know what’s going on. I will tell you it’s incredibly dangerous when things get out into the press like that….”

– Comment by UN Ambassador Nikki on Fox & friends,
August 8, 2017, when asked about Fox News story;
Tweeted by Fox & friends and re-tweeted by President

his bit of political circus hooha was briefly all over the news early in the week, with almost no news outlet getting it right: that the issue of “classified information” and “leaks” is largely a meaningless smokescreen designed to protect the power of government secrecy against the public’s right to know the truth.

Logically, this sequence of events should lead to an Attorney General investigation of Fox and President Trump for disclosing classified information, or at least an investigation of Fox News to learn the identities of its anonymous officials with access to intelligence data (perhaps in the White House). This is a perfect time for a test case that demonstrates real integrity. Does anyone expect anything like that to happen?

The underlying story from Fox News is relatively simple in substance, fundamentally illogical, and more important for its attitude than its presumed facts:

Despite the United States’ insistence that North Korea halt its missile tests, U.S. spy agencies detected the rogue communist regime loading two anti-ship cruise missiles on a patrol boat on the country’s east coast just days ago.

It’s the first time these missiles have been deployed on this type of platform since 2014, U.S. officials with knowledge of the latest intelligence in the region told Fox News on Monday.

So what’s the actual news here? There is no logical connection between missile tests and missiles on a patrol boat. North Korea, a country flanked by two oceans full of nuclear-armed US Navy warships, has done something it has reportedly not done for three years, put two anti-ship missiles on one patrol boat. Or as Fox News put it lower in its report: “North Korea loaded two Stormpetrel anti-ship cruise missiles on a Wonsan guided-missile patrol boat at Toejo Dong on North Korea’s east coast.”

Oh, no, North Korea has a threat that threatens no one

So what? According to the report, the patrol boat has not even left port. One of the leakers is quoted as calling this event part of “a trend that does not bode well for hopes of de-escalating tensions on the [Korean] peninsula.” What does that even mean? Are the South Koreans intimidated? Is the US Navy pulling back in fright?

This leak of classified information, limited as it is, complete with anonymous editorializing, is the actual destabilizing action raising tensions. The leak comes in the context of a broad US onslaught against North Korea – diplomatic, political, and militarily threatening. The real audience for the leak appears to be the North Koreans. The leak seems to be telling them: see, we have satellites so cool we can count the missiles you load on a patrol boat. Presumably the North Koreans already assumed as much, but just in case, this reminder is not designed to de-escalate tensions on the Korean peninsula or anywhere else.

The only significant political figure indicating any interest in de-escalating the Korean tensions is recently-elected South Korean president Moon Jae-in, a former human rights lawyer who has publicly invited talks with North Korea. The US has so far acted to prevent such talks from starting, even introducing anti-missile batteries into South Korea without the South Korean president’s knowledge, clearly a provocation to the North as well as a diss to the South. When President Moon Jae-in visited the White House in June, the two presidents did not hold a joint news conference and White House reports focused on keeping tension high in Korea. The following week, President Moon Jae-in offered to meet North Korea’s Supreme Leader Kim Jon Un “at any time, at any place” they could agree on. In Berlin at the time, President Moon also said:

To Korea, which is the last divided nation on this planet, the experience of Germany’s unification gives hope for unification, and at the same time shows us the path that we need to follow.

It is not a path the rest of the world seems to have much interest in. The US remains focused on North Korea’s threat to the US and “most countries around the world,” but the most threatened country by any rational calculus is South Korea. In the wake of the UN Security Council’s 15-0 vote to impose new sanctions on North Korea, President Moon Jae-in requested a call with President Trump. The two presidents spoke for 56 minutes; no transcript of their conversation has yet leaked. The official account from South Korea portrayed President Moon Jae-in toeing the American line, but also reported: “Moon, however, insisted the objective of putting new and stronger sanctions on North Korea must be to bring the reclusive state back to the dialogue table.”

There’s a Rashomon quality to US communications with the world

The White House version of the same conversation was more terse and bellicose, with no hint of supporting talks. At the meeting of ASEAN nations in the Philippines over the weekend, the US secretary of state reportedly went out of his way to avoid contact with the North Korean foreign minister, who apparently did the same to the US. Neither the US nor North Korea is a member of ASEAN (Association of Southeast Asian Nations), whose membership of ten nations comprises Brunei, Cambodia, Indonesia, Laos, Malaysia, Myanmar, the Philippines, Singapore, Thailand, and Viet Nam. The official, unsigned, 46-page joint communiqué of the meeting addressed the Korean issue in two sections. The first section (paragraphs 146-150) referring to South Korea (ROK, Republic of Korea) began:

We welcomed the ROK’s commitment to further strengthen ASEAN-ROK relations, as manifested by the President Moon Jae-in’s sending a special envoy to ASEAN upon his taking office in May 2017. We also agreed to further strengthen cooperation in the political and security issues of common concerns, including terrorism, violent extremism, maritime security as well as to exchange views on the situation in the Korean Peninsula. We also welcomed the ROK Government’s initiative to improve inter-Korean relations and to establish permanent peace on the Korean Peninsula, which was proposed in Berlin on 6 July 2017.

The section dealing with the US (paragraphs 152-162) is much less detailed and much more opaque. The second Korean section, “Developments in the Korean Peninsula” (paragraphs 201-204) says in its entirety:

201. We continued to express grave concerns over the escalation of tensions in the Korean Peninsula including the most recent testing by the Democratic People’s Republic of Korea (DPRK) of intercontinental ballistic missiles (ICBM) on 4 and 28 July 2017 in addition to its previous nuclear tests and ballistic missile launches.

202. Noting that these developments seriously threaten peace and stability in the entire region and beyond, we strongly urged the DPRK to fully and immediately comply with its obligations arising from all the relevant U.N. Security Council Resolutions.

203. We reiterated our support for the denuclearisation of the Korean Peninsula in a peaceful manner and called for the exercise of self-restraint and the resumption of dialogue in order to de-escalate tensions and create conditions conducive to peace and stability.

204. We expressed support for initiatives to improve inter-Korean relations towards establishing permanent peace on the Korean Peninsula. [Emphasis added]

The US has a treaty-based obligation to seek nuclear disarmament — so?

A little more than an hour after tweeting the classified information about North Korean patrol boats loading a pair missiles dockside, President Trump tweeted in a vein roughly opposite in tone to the ASEAN communiqué:

After many years of failure, countries are coming together to finally address the dangers posed by North Korea. We must be tough & decisive!

This drew a remarkably varied assortment of reply tweets attacking the president for his efforts to undermine Obamacare, to attack Senator Blumenthal on his Viet Nam service, to ignore anti-Muslim terrorism in Minnesota, to attack the Statue of Liberty, to scapegoat Somalis, to block VoteVets.org from his Twitter account, but most pointedly to set up the possibility of bombing North Korea as a distraction from some unpleasant event “like … maybe when Bill Clinton takes the stand claiming you were trafficking young girls for sex from Russia.”

OK, the accusation about Trump sex trafficking is based on a leak of unclassified (but private) information purportedly from New York attorney general Eric Schneiderman’s investigation of Trump Model Management for sex trafficking as part of an “enterprise corruption” charge. Although the NY Attorney General’s office is apparently not commenting, Trump Model Management is a dubious enterprise that announced in April that it was closing.

Buried at the end of the Fox News story about missiles on patrol boats was a far more troubling development: the US is working with the South Korean military to expand the capacity of the warheads on South Korean missiles. The Pentagon confirmed this development, calling it part of “the defensive capabilities of South Korea,” a half-truth at best. The official South Korean version of the US-South Korean president’s phone call was more detailed, while also shifting the onus of escalation to President Moon Jae-in:

The South Korean leader also stressed the need to further enhance the joint defense capabilities of South Korean and U.S. troops stationed here. To this end, he asked the U.S. president to support a Seoul-proposed revision to the countries’ bilateral agreement on ballistic missiles….

Under the allies’ ballistic missile guideline, South Korea is currently prohibited from developing ballistic missiles with a range of over 800 kilometers [almost 500 miles, far enough to reach into China] and a payload of over 500 kilograms. South Korea seeks to raise the cap on payloads to 1,000 kg [one fourteenth the explosive power of the Hiroshima bomb].

In expectation of a future US strike on North Korea, the Chinese deployed some 150,000 troops in April along its roughly 840-mile border with North Korea, in case of a flood of North Korean refugees to China.

Is THIS what Russia, China and the rest expected from a 15-0 UN vote?

At mid-day August 8, another leak story broke, much more important than missiles on a patrol boat. The Washington Post reported, with more fear-mongering than factuality, first in its headline “North Korea now making missile-ready nuclear weapons, U.S. analysts say,” even though “now” is already a month ago, maybe, as the story says:

North Korea has successfully produced a miniaturized nuclear warhead that can fit inside its missiles, crossing a key threshold on the path to becoming a full-fledged nuclear power, U.S. intelligence officials have concluded in a confidential assessment.

The analysis, completed last month by the Defense Intelligence Agency, comes on the heels of another intelligence assessment that sharply raises the official estimate for the total number of bombs in the communist country’s atomic arsenal. The United States calculated last month that up to 60 nuclear weapons are now controlled by North Korean leader Kim Jong Un. Some independent experts think the number of bombs is much smaller.

Leaked story, classified intelligence assessment, anonymous sources inside the administration, bring on the prosecutions? Don’t hold your breath. The leak pattern here is all too convenient to an administration that appears hungry for war, and especially this war. The leak pattern here is all too reminiscent of all those weapons of mass destruction (WMDs) that didn’t exist in Iraq.

If you read beyond the scary hype of the Post’s opening, you’ll learn that the certainty of the headline is not certain at all and might well be yet another government fantasy scare tactic. The Post admits it has not actually seen the Defense Intelligence Agency report. Somebody unnamed read an excerpt to the Post and two “US officials familiar with the assessment” verified its broad conclusions. One of those conclusions, it turns out, is that no one is sure whether North Korea has even tested the warhead that the Post headline claims “North Korea now making.” Better still, and deeper in the story, other anonymous analysts say that North Korea’s ICBM burned on re-entry in last month’s test, which would mean that North Korea does not yet have a missile that can deliver a nuclear warhead. Maybe they’ll have one in a year. Nobody’s talking about how many years it will take for North Korea to have anything like a deterrent threat to counter the US nuclear arsenal of roughly 6,800 nuclear warheads and multiple delivery systems.

This is the arsenal that the US has been threatening the world with since it was much smaller in 1945. The US arsenal is the main reason Russia has an arsenal of equal size and other countries (France, China, Britain, Pakistan, India, and Israel at a minimum) have their own nuclear arsenals to provide some sense of safety that vanishes as soon as the arsenal is used. So North Korea is a rogue state only in the sense that all other nuclear powers are rogue states. The world could live with that; the US could live with that. But if the US chooses, out of pure self-involved tunnel vision, not to live with that, the question then becomes how much of the rest of the world will end up not living with that?

“North Korea best not make any more threats to the United States,” President Trump told reporters gathered at his New Jersey golf club. Speaking with his arms crossed on his chest, and using an unpersuasively tough tone of voice, he added: “They will be met with fire and fury like the world has never seen. He has been very threatening beyond a normal state, and as I said they will be met with fire, fury, and frankly power, the likes of which this world has never seen before. Thank you.”

Oh no, thank YOU, Mr. President, for the perfect remarks to commemorate the anniversaries of the fire and fury the world saw destroy the defenseless civilian populations of Hiroshima and Nagasaki.

William M. Boardman has over 40 years experience in theatre, radio, TV, print journalism, and non-fiction, including 20 years in the Vermont judiciary. He has received honors from Writers Guild of America, Corporation for Public Broadcasting, Vermont Life magazine, and an Emmy Award nomination from the Academy of Television Arts and Sciences.

Reader Supported News is the Publication of Origin for this work. Permission to republish is freely granted with credit and a link back to Reader Supported News.

Innocence Is Irrelevant

By Emily Yoffe, The Atlantic

09 August 17

This is the age of the plea bargain—and millions of Americans are suffering the consequences.

t had been a long night for Shanta Sweatt. After working a 16-hour shift cleaning the Tennessee Performing Arts Center, in Nashville, and then catching the 11:15 bus to her apartment, she just wanted to take a shower and go to sleep. Instead, she wound up having a fight with the man she refers to as her “so-called boyfriend.” He was a high-school classmate who had recently ended up on the street, so Sweatt had let him move in, under the proviso that he not do drugs in the apartment. Sweatt has a soft spot for people in trouble. Over the years, she had taken in many of her two sons’ friends, one of whom who had been living with them since his early teens.

When Sweatt got home that night, early in November of last year, she realized that her boyfriend had been smoking marijuana, probably in front of the kids. She was furious, words were exchanged, and he left. Sweatt finally crawled into bed after midnight, only to be awakened at about 8:30 in the morning by an insistent knock at the door. She assumed that her boyfriend was coming to get his stuff and get out of her life.

When she opened the door, police officers filled the frame, and more were waiting at her back door. She could see that squad cars were swarming the parking lot. “There were 12 to 15 cars,” she told me. “For us.” An officer asked whether they could enter. As a resident of public housing, she wasn’t sure whether she had the right to say no. (She did.) But she was certain that if she refused them, they would come back. She had nothing to hide, so she let them in. “I didn’t get smart or give them a rough time,” she said. “I cooperated.”

Sweatt, who is black, didn’t know what had led the police to her door. Their report says a complaint had been made about drug dealing from the apartment. After entering, they began systematically searching her apartment. One officer yanked open a junk drawer in her bedroom dresser, and inside he found small baggies of marijuana, containing a total of about 25 grams—a weight equivalent to about six packets of sugar. There was also marijuana paraphernalia in the apartment. When the officer showed the baggies to her, Sweatt immediately knew they had to belong to her boyfriend, who—in addition to having just been smoking in her home—had past drug convictions.

Sweatt, 36 years old, left high school in 11th grade, but she has the kind of knowledge of the law that accrues to observant residents of James A. Cayce Homes, a housing project in East Nashville. “I’m the lease owner,” she told me. “Whatever was there, I would get blamed.” It seemed useless to her to say that the drugs must have belonged to her absent boyfriend, who had a common name and no fixed address. She believed that this would result in the police pinning the crime on her sons. Her 17-year-old was at school, but her 18-year-old, who worked on the cleaning crew with her, was home, along with the friend of his who lived with them. Sweatt told me, “I’ve seen that where I lived: The parents said no, so everyone in the house gets charged. I’m not going to let my children go down for someone else’s mistake. A parent should take ownership of what happens in the house.” So she made a quick and consequential decision. To protect her sons, she told the police that the marijuana belonged to her. “I said it was mine, and me and my homegirls were going on vacation to California. I said we were going to take the marijuana with us—I heard it was legal there—and we were going to smoke for a week or two, then come back to normal life.”

Sweatt told me this two months after her arrest. She and I were sitting in a conference room at the Metropolitan Public Defender’s Office, in downtown Nashville. She was dressed for work in a black sweatshirt, sweatpants, and sneakers. A large ring of keys attached to her belt bespoke her responsibilities as a janitorial supervisor at the arts center, just a few blocks away. I asked how she had come up with such a specific story on the spot. “It’s a dream,” she said. “I heard California is more lively, more fun, than Nashville. The beaches are pretty. The palm trees.” For a moment she looked as if she could actually see the surf. She was born and raised in East Nashville and has spent almost her entire life within the same few square miles. She had no plans to vacation in California, or anywhere else. “All I do is work and take care of my sons,” she said.

The police seemed to believe her story (the arrest warrant noted her upcoming trip) and drove her downtown, where they put her in a holding room. By 1 o’clock that afternoon, her bail had been set at $11,500. To be released, she needed to get $1,150 to a bail bondsman. She contacted a friend, and they each paid half. (“That’s gone,” she says.) She assumed she’d be out in time to get to work that evening, but the money didn’t clear until almost nine, minutes before she was to be sent to jail in shackles. A court date was set for January. Sweatt was facing serious charges with serious consequences, and she was advised to get an attorney.

The fallout began even before the court rendered judgment in her case. Under the rules of the housing agency, her arrest prompted her eviction, which scattered her family. Sweatt moved into a cheap motel, and her sons moved in with her mother, although she still managed to see them every day. She tried to get enough money together to hire what she calls “a regular lawyer,” meaning a private attorney, but failed. So in January she turned to the public defender’s office—a choice that many people in her situation make reluctantly. That’s because of the common misperception, I was told by Dawn Deaner, the head of the office, that public defenders are nothing more than “public pretenders” who are “paid to plead [their clients] guilty.”

Sweatt’s case was assigned to a lawyer named Ember Eyster. At their first meeting, Sweatt felt reassured. As she put it to me, “Ember wears a dress that says, I’m going to take you down!” During their 75-minute discussion, Eyster asked Sweatt what her goals were, and Sweatt responded with a big one: no incarceration. She couldn’t bear the idea of being away from her boys. At Eyster’s request, Sweatt gathered her time sheets from work and dropped them off at Eyster’s office. Eyster planned to use them as evidence that Sweatt was too busy mopping the floors at the arts center day and night to be a drug trafficker.

The next time Eyster and Sweatt saw each other was two weeks later, in court. Sweatt had been charged with a Class D felony, which carried a two-to-12-year prison sentence, and a misdemeanor related to the paraphernalia. Exactly what punishment she would face depended largely on how the district attorney’s office weighed several factors. First, there was her confession. Second, there was the police account of the circumstances of the arrest. Third, there was the fact that she lived within 1,000 feet of an elementary school, which meant it was possible that the charges against her would be “enhanced.” Finally, there was the fact that she already had a criminal history. In years past, she had pleaded guilty to several minor misdemeanors (most for driving with a suspended license) and one felony. The felony conviction resulted from her involvement in a 2001 robbery at a Jack in the Box. As Sweatt tells it, friends had discussed committing a robbery at the restaurant, where she worked, and then surprised her by actually carrying one out. She was arrested and pleaded guilty to a charge of “facilitation,” and in exchange got three years of probation. “I have never gotten into trouble since,” she told me, “except for driving without a license.” She now relies on the bus.

Eyster believed that Sweatt was innocent of the drug charges against her. “This is a hardworking woman who lived in a heavily policed community for 10 years,” she told me. “If she were a drug dealer, she would have already been evicted. She doesn’t have a history of drug use.” But the idea of taking this case to trial was a nonstarter. The best path forward, Eyster decided, was to humanize Sweatt to the prosecutor—hence those time sheets—and then try to negotiate a plea bargain. In exchange for a guilty plea, the prosecutor might not recommend a prison sentence.

The strategy worked. The prosecutor reduced the charge from a felony to a Class A misdemeanor and offered Sweatt a six-month suspended sentence (meaning she wouldn’t have to serve any of it) with no probation. Her paraphernalia charge was dismissed, and her conviction would result in a fine and fees that totaled $1,396.15.

Upon hearing the news, Sweatt embraced Eyster and wept with joy. Then she stood before the judge and pleaded guilty to a crime she says she did not commit.

This is the age of the plea bargain. Most people adjudicated in the criminal-justice system today waive the right to a trial and the host of protections that go along with one, including the right to appeal. Instead, they plead guilty. The vast majority of felony convictions are now the result of plea bargains—some 94 percent at the state level, and some 97 percent at the federal level. Estimates for misdemeanor convictions run even higher. These are astonishing statistics, and they reveal a stark new truth about the American criminal-justice system: Very few cases go to trial. Supreme Court Justice Anthony Kennedy acknowledged this reality in 2012, writing for the majority in Missouri v. Frye, a case that helped establish the right to competent counsel for defendants who are offered a plea bargain. Quoting a law-review article, Kennedy wrote, “?‘Horse trading [between prosecutor and defense counsel] determines who goes to jail and for how long. That is what plea bargaining is. It is not some adjunct to the criminal justice system; it is the criminal justice system.’?”